A selection of oriental cases decided in the Supreme courts of the Straits' Settlements

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NOTE.

In this reprint the errata and addenda
have all been noted in the text. It is other=
wise a facsimile of the original edition.

A

SELECTION

OF

ORIENTAL CASES

■ DECIDED IN

THE SUPREME COURTS OF TPIE STRAITS'
SETTLEMENTS.

COLLECTED AND ARRANGED

BY

ROBERT CARR WOODS, JUNR., ESQ.

BARRISTER-AT-IAW,
AN ADVOCATE AND ATTORNEY OF THE SUPREME COURT.

" It is more a question of comity than law, and it is difficult to say
where to draw the line."

PINANG.

PRINTED FOR PRIVATE CIRCULATION,
1, NORTHAM RoAD.

1869.

PINANG.

Printed by S. Jeremiah.
1, NoRTHAM Road.

Reprinted 1911

by

Sweet & AIaxwell, Ltd.,
3, Chancery Lane, London.

PREFACE.

This reprint of Judgments is made with a view of
collecting for the first time into one small volume
the principal Straits' Anglo-Oriental Law Cases,
that are to be found widely scattered throughout the
Local Journals, and to which access cannot be had
but with great difficiilty. It is hoped that this Col-
lection may be found useful to the Profession as a
Repertorium pointing out the most important excep-
tions that have been engrafted on the Law in
favor of our Chinese, Mahometan, Hindoo and other
native population. A few unreported Decisions and
Notes of recent Local Cases have been added as it is
considered they may prove interesting or be of some
service to the Bar.

The Judgment in Regina v. Willans is not in-
cluded in this Collection as it is already in the hands
of the Profession, and is to be foimd in the 3rd.
volume of the Journal of the Indian Archipelago,
new series.

It is hoped that this little Manual may be but the
harbinger of an " authorized " edition of the Oriental
Cases, revised and authenticated by the Jiidges, as
such a work of authority would be invaluable to every
one concerned in the administration of justice in
the Colony, and might be a guide to future Judges
in expanding the Common Law to siiit the religions
and customs of the natives.

The omission in our Charters of Justice of any
special provisions for the native laws being adminis-
tered (as in India) to the Oriental races resident
in the colony has naturally created a conflict of Laws,
which is in no way alleviated by H. M's. Letters
Patent good-naturedly directing the administration
of the Laws of England " as far as circumstances, and
the religions, manners and ctistoms of the inhabi-
tants will admit. ' ' The Courts at present are inclined
to allow the native customs to prevail when injustice
would follow from strict adherence to our English

Law, but tlie matter may still be considered as a
VEXATA Qua:sTio, which may hereafter be finally de-
termined in favor of our native subjects more by the
force of local precedents than otherwise.

It is to be regretted that the Government or the
Local Legislature have not as yet endeavoured to
make regulations for the security and purity of native
Marriage and Divorce Registries in this Colony, as
the lax practice prevailing here and the Custom of
the Kazees of taking their Registry out of the Colony
whenever they travel abroad does incalculable injury.

I beg the indulgence of the Profession for the typo-
graphical errors which have crept into the following
pages as the revisal was carried on with difficulty
during the hours of professional duty and whilst en-
gaged in Court.

PiNANG, / p n w

1st March, 1869. C K. b. W.

JUDGES.

Recorders of Prince of Wales' Island.

Sir Edmund Stanley, Knt 1807-1815

„ Andrew A. Cooper, „ 1815-1817

„ Ralph Rice, „ 1817-1823

„ Francis S. Bailey, „ 1823-1824

Recorders of P. W. Island, Singapore & Malacca.

Sir John T. Claridge, Knt 1825-1827

„ Benjamin H. Malkin, „ 1827-1835

Edmimd J. Gambier,
Wm. Norris,
Christ. Rawlinson,
Wm. Jeffcott,

1835-1836
1836-1847
1847-1850
1850-1855

Recorders of Singapore & Malacca.

Sir Richard B. Mc'Causland, Knt 1856-1866

„ P. Benson Maxwell, „ 1866-1867

Recorders of P. W. Island.

Sir P. B. Maxwell, Knt 1856-1866

„ Wm. Hackett, „ 1866-1867

Chief Justice of the Straits Settlements.
Sir P. B. Maxwell, Knt i867—

Judge of Pinang.
Sir Wm. Hackett, Knt. 1867-

ADVOCATES AND ATTORNIES.
1869.

James R. Logan. Pinang.

Abraham Logan. Singapore.

Robert Carr Woods. "■••■ „

Alex. M. Aitken.* „

Francisco E. Pereira.* „

John S. Atchison. „

Bernard Rodyk. Pinang.

David Aitken. ,,

Hon. Thomas Braddell,® (Att. G-en.) Singapore.

James Gr. Davidson „

Wm. G. Campion. „

Alex. G. Banmgarten ,,

Alex. Aug. Baumgarten „

Robert Carr Woods, Jr."*' Pinang.

Edwin Koek. Singapore.

Danial Logan.,'' (Sol. Gen.) Pinang.

Horatio Baumgarten Malacca.

Duncan C. Presgrave Pinang.

Charles W. Rodyk

* These Gentlemen are Barristers-at-Law of England.

TABLE OF CASES.

Page.

1. In the Goods of Abdullah. Administration. 1

2. In re Cim Siang Long's Estate. „ Adoption. 11

3. In re Chong Long's Estate. Will. Sinchew. 13

4. Nonya Siu v. Oothmansah Merican. Mar-

riage and Guardian. Cliinese Law 22

5. Hawah v. Daud. Personalty of Mahomedan

feme covert is to her separate use 26

6. Chulas & Kachee v. Kolson. Coverture of

Mahomedan feme covert is no Plea in bar. 30

7. In the Goods of Lao Leong An. Administra-

tion. Distribution when two wives 35

8. Veeramah v. Sawmy. No Restitution of Con-

jugal rights amongst Hindoos on the Eccles.
side 38

9. Reg. V. Loon. Restitution of Conjugal rights

amongst non-Christians on Civil side 39

10. Vadanialia Pillay v. Shetthay Amah. No

Restitution of Conjugal rights amongst Hin-
doos on the Civil side 41

11. Abdul Cader v. Shatomah. Mahomedan mar-

ried woman must acknowledge assignments
of her realty in conformity with Indian Act
31 of 1854 42

Appendix I.

12. Choa Cheow Neo v. Spottiswoode. — WiU. Sin-

chew. Perpetuity and no Charity 1

Appendix II.

Page.

13. Abdul Wahap v. Sultan AUi. Jurisdiction. 1

14. Veerapa Chitty v. Sultan AUi. ,, „

15. Hadjee Hamid v. Tunku Alii. „ ,,

16. Hong Lip V. Tumongong of Johore. ,, „

17. L. Nairne v. Rajah of Quedah. „ „

Appendix III.

18. Virapa Chitty v. Ventre. Marine Insurance.

Deviation 1

19. Mootoo Curpen Chitty v. Lee Toh. Chitty

Insurance Bond no Wager Policy ,,

20. Abdul Kader v. Shatomah. Acknowledgment

by married woman of assignments of her
realty necessary „

21. Maxwell v. Chittyappah Chitty. ^Mortgage.

Sale of hackney carriage „

22. Shedumbrum Chitty v. Jones. Assignment of

Salary „

23. Attorney General v. Kam Kong Gay. Repeal

of prior Act by implication „

24. Tan Kay v. Tan Lat. Practice. Title of

Court ,,

25. In the Goods of Meh AUang. Administration.

Adoption 2

©tiental Cases:

Court of 3uMcature.

PINANG.

IN THE GOODS OP ABDULLAH, DECEASED.

Will of Mahomedan alienating the whole of his property (although

by the Mahomedan Law he can alienate only one third) is good pro

tanto. The administration granted by the Court to the Widow

revoked, and the Will admitted to Probate. 31 March 1835

Indian Law Commissioners' Report, 1842.

Morton's Reports, 19.

Judgment of Sir Benjamin H. Malkin, Knight,
Recorder.

This was an application to set aside the adminis-
tration granted to the widow of the deceased, a Ma-
hometan, and to admit an alleged Will to probate.
There was no dispute as to the execution of the pa-
per treated as a Will ; but it was urged on the part
of the widow that the Will was inoperative, as not
being conformable to the rules of the Mahometan
law ; the fact that it was not so conformable is ad-
mitted, and the only question is, whether for that
reason the Will ought not to be admitted to probate.

It would be sufficient for the decision of the pre-
sent case to observe, that the will is only at vari-
ance with the rules of the Mahometan law, inas-
much as it professes to pass the whole property, and
by that law, the power of the testator to bequeath
his property extends only over a third part of it.
As to that third part, the testator has not exceeded
his power, and the Will is at all events good pro
tanto. The consequence is, that the administration
granted to the widow must be revoked, as having
been obtained on the supposition that there existed
no Will at all ; and the Will must be admitted to
probate (or rather, as I will mention hereafter a
course slightly different adopted), as being an au-
thentic instrtiment, of some force and validity ; the
question, to what extent it Avill be operative, re-
maining unaffected by the mere fact of such ad-
mission. This result seems too obvious to require
any authority to support it ; but such authority, if
wanted, will be found in the case of Syde Ally v.

(2)

Syed Kullee Mulla Khan, Sir T. Strange, Rep II., 180.

As a general rule, I have been unwilling to ex-
press any opinion on points of law not necessarily
coming before me for decision. And accordingly, in
several cases, wbere tbe same principle as tbat con-
tended for in the present case has come inciden-
tally in question, I have avoided expressing any
opinion upon it ; the parties in some instances ha-
ving all wished their own law to be carried into ef-
fect, and the only question having been what was its
true interpretation, and in others the party insis-
ting on the benefit of his own law, having clearly
failed to make out a claim, even upon his own prin-
ciple. I am not willing however, to avoid declar-
ing my opinion in this case ; partly because the ex-
pression of it, though not necessary to the dispo-
sal of the present application, may prevent the par-
ties from having recourse to farther litigation, which
otherwise must almost necessarily ensue ; and part-
ly because, as the question is not very likely again
to be raised before me, I should be u.nwilling to have
it supposed, as it easily might, from my having
sometimes avoided its determination, that I felt it to
be of any considerable doubt. I, indeed, have in
substance expressed my opinion upon it before ;
and for that reason also, I am the less unwilling
now, without absoKite necessity, to declare it.

I refer to the case of Rodyk and others v. William-
son and others (24th May 1834), in which I express-
ed my opinion, that I was bound by the uniform
course of authority to hold that the introduction of
the King's charter into these settlements had intro-
duced the existing law of England * also, except in
some cases where it was modified by express provi-
sion, and had abrogated any law previously existing.
I intimated much doubt, indeed, whether I should
have agreed on such a construction of the effect of

* Vide Judgment in Regina vs. Willans. 1858. Journal of the
Indian Archipelago, III. 28,35,49.

(3)

a charter liad the question been a new one ; but I felt
bound by the weight of authority, and decided against
the continuance of the Dutch law at Malacca accor-
dingly. The Mahometan law can stand on no bet-
ter footing, unless by the express provisions of the
charter ; for the statutes giving the Mahometan and
Gentoo inhabitants within the jurisdiction of the
King's courts at Calcutta, Madras, and Bombay the
benefit of their own laws, apply only to persons so
resident. The iDulk of the inhabitants of India are
otherwise protected.

It may be worth while, however, before adverting
to the terms of the charter, to observe that though
the Mahometan law cannot, independently of them,
stand on a better footing here than the Dutch
law at Malacca, it may very easily stand on a
worse. To place it on the same, it will be ne-
cessary to prove that it existed, not as the custom of
a particular portion of the inhabitants, but as the
law of the place, up to the time of the first charter.
I believe it would be very difficult to prove the exis-
tence of any definite system of law applying to Prince
of Wales' Island or Province Wellesley previous to
their occupation by the English ; but that law, what-
ever it was, would be the only law entitled to the
same consideration as the Dutch law at Malacca ;
indeed, even that would not in general policy, though
it might in strict legal argument ; for there might be
much hardship in depriving the settled inhabitants
of Malacca of a system which they had long under-
stood and enjoyed, but more "■■' in requiring the per-
sons who resorted to these new and almost uninha-
bited districts (for such they were when we got them)
to conform, as all settlers must, unless there is an
express exception in their favour, to the law of the
land they settled in.

I have said that I consider myself as having, in

* ? None.— Ed.

(4)

substance, disposed of the present question in tlie
case of Rodyk v. Williamson ; for all the arguments
applicable to the present case would have applied to
that also, the laws, customs, &c. of the Dutch being
just as much preserved to them as those of any other
class of inhabitants, except inasmuch as they may
be less repugnant to the English law, and therefore
less frequently affected by its introduction, and the
Dutch law being also, which perhaps the Mahome-
tan law might be proved to have been here, (but that
would be a matter of evidence), the law of the coun-
try before the charter. The latter argument, how-
ever, was disposed of in that case ; nor was it there
contended that the general words of the charter,
saving to the different inhabitants their several re-
ligions, manners, and customs, had the operation
now ascribed to them.

Nor, in my opinion, can any such operation be
sustained. If the question were entirely a new one,
it would seem to me to admit of very little doubt.
The operation contended for is quite unlimited ; it
gives to all the inhabitants of these places the full
benefit of their own laws, religions, and customs ;
for no line is drawn to confine the effect of the
words relied on, either to any particular nations, or
to any particular rights. The effect contended for
therefore goes far beyond the state of the law at Cal-
cutta, Madras, or Bombay, where the benefit, if it be
one, is confined to Mahometans and Hindoos, and
is limited to certain classes of rights and privileges.
This is not a very probable operation of a charter
made for the administration of law to a new popula-
tion, and where therefore the reasons for such a re-
servation on the continent of India did not, at least
to the same extent, exist.

I confess I am unable to see any words in the
charter which can bear out such a result. The pas-
sage relied on with respect to the present question is

(5)

in page 21 " That the said court of judicature shall
have and exercise jurisdiction as an ecclesiastical
court, so far as the several religions, manners, and
customs of the inhabitants will admit." There are,
however, similar passages on other subjects in pp.
41,43,47,53 ; these all differ in the minutise of ex-
pression, but I think there can be but little doubt
that they were all meant to give the same kind of
protection. It would be a very dangeroiis way of
construing a document so loose in its expression as
the charter to attribute all casual variations of
phrase to a definite intention of affixing a different
meaning. But in the general impression the char-
ter seems to have intended to give a certain degree
of protection and indulgence to the various nations
resorting here ; not very clearly defined, yet perhaps
easily enough applied in particular cases, but not ge-
nerally, to sanction or recognise their law. In the
words of page 43, respecting the criminal proceedings
of the court, " due attention is to be had to the seve-
ral religions, manners, and usages of the native in-
habitants ; " or as expressed in page 41, process is to
be accommodated to such religions, manners and
usages, " so far as the same can consist with the due
execution of the law and the attainment of substan-
tial justice." In this last extract " the law " is clear-
ly distinct from those native laws which are to be
favoured subordinately to it.

I see no reason to ascribe a different construction
to the words giving ecclesiastical jurisdiction. And
it is to be observed that in the detailed provisions
respecting such jurisdiction no such words are foimd ;
they are only inserted in the general description of
the jurisdiction of the court ; it might therefore be
open to contend that they applied only to other mat-
ters of ecclesiastical cognizance not expressly inclu-
ded in the subsequent minute directions. But with-
out insisting on this, which would probably be too
strict a construction, I think there is abundantly

(6)

enough in these provisions of the charter to show
that no such recognition of the different laws of dif-
ferent inhabitants could obtain. The court here is
to grant probate and administration of the wills and
effects of aU the inhabitants, and aU other persons
who shall leave property here ; the courts in the pre-
sidencies of India have such jurisdiction given them
only over the estates of British subjects, and accor-
dingly it has been held at Madras (Chalunnal v.
Garrow, Sir T. Strange, II. 153, recognised in Syed
Ally V. Syed KuUee MuUa Khan, lb. 186,) that no
probate or administration was necessary in the case
of native estates, though the court did not refuse to
grant it. In the same manner it would not be here,
for certainly it is neither Malay nor Hindoo nor Chi-
nese law that a party can have no representative cha-
racter unless derived from the court of judicature
established here under the charter of the King of
England, and proceeding according to the law used
in the diocese of London. The mere fact, therefore,
that administration and probate have always been
applied for, seems almost to negative, as far as gene-
ral usage and understanding is material, the argu-
ment advanced.

This observation is important, because Mr. Gaunter,
the advocate on the part of the widow, relies much on
the general practice of the Court as invalidating the
WiU, and recognising the national law of the testator.
No decisions, however, are cited in detail, and much
of the practice referred to might be only like that
which has obtained before myself, that, where the
parties contested a matter on the footing of their
own law, the court did not interfere to insist on their
adopting another. In many cases, too the laws, and
usages would be material : the propriety of an admi-
nistrator's account, for instance, might depend on
the religious usages of his nation as to burial ; the
propriety of his application of property might some-
times depend upon a native law or custom of marri-

(7)

age. And in respect of wills, to one case of which
Mr. Caunter adverted rather more particularly than
to any other instance, everything as far as the Will
is acted on at all, must depend on its construction
merely. I should say that the Court oiight very rea-
dily to collect from the expression of a Will that the
testator intended his property, so far as not particu-
larly disposed of, to follow the law to which he was
accustomed. Thus, in a Will very recently exhibited
before me, I should have no doubt that a direction by
a Mahometan, that the property should be distribu-
ted "according to the law of God," imported a distri-
bution by the Mahometan law of descent. * If such
a party disposed of the third part of his property ex-
pressly as that which only he should alienate by
Will, I should treat it as a clear declaration of his
expectation and intention that the rest should follow
the course of that law by which, and by which only,
his power was so limited. I put plain and easy
cases on purpose, but the same principle would very
often, in my judgment, have to be applied. But all
these would be decisions not on the legality, but on
the construction of a particular Will, and such, in
the absence of minute information, I should believe
to be the character of most or all of the testamen-
tary cases referred to.

On the whole, I should entertain little doubt on
the question, had I not the authority of Sir Ralph
Rice against me. I cannot, however, but think,
that thoiigh his opinion undoubtedly differed in
some degree from mine, it must either be inaccu-
rately reported in the passages referred to by Mr.
Gaunter, or else must have been given without refer-
ence at the time to the provisions of the charter un-
der which he had then ceased to act for nearly seven
years. I come to this conclusion, because I find
him drawing a marked distinction between the civil

* Et vide Judgment in Regina vs. Willans, 1858. 3 .Journal of the
Indian Archipelago, N. S. 44.

(8)

and criminal law, for whicli, even independently of
the general principle already adverted to, of putting
the same construction on provisions generally simi-
lar, I do not find that warrant in the special wording
of the charter which he seems to have considered to
exist. With respect to the criminal law, Sir R. Rice
(Art 1386, p. 174, of the Evidence before the House
of Lords, 1830) expresses himself in a manner not
much differing from my own, though corresponding
perhaps to a rather wider interpretation of the clauses
protecting the natives. But he draws a distinction
between the criminal law and that affecting civil
rights, with respect to which he says, that the court
was bound by the clause in the charter to administer
the law to every part of our mixed population accor-
ding to their respective laws and customs. Now, in
the detailed provisions as to the prosecution of civil
suits, no reference whatever is made to the religions,
manners or customs of the parties except as to the
administration of oaths and the framing of process,
where the passage in page 41, already referred to, is to
be found. And in the general description of the juris-
diction of the court nothing of the kind is said in the
enumeration of the causes of action and parties sub-
ject to it, and the words of the clause giving it the
same authority as the courts of coramon law and equi-
ty in England are only that these powers are to be ex-
ercised " as far as circumstances will admit." The
distinction therefore between the civil and criminal
law would seem to be rather against than in favour
of the more extended adoption of the native laws
into the former ; and I cannot therefore but think
that there must be some error, either in the report
of the learned judge's examination, or in his recol-
lection of the words of the charter.

Still it is evident that his practice must have been
in some degree contrary to the opinion I have ex-
pressed. Under these circumstances, I cannot but
distrust my own judgment; still, as the case, inde-

(9)

pendently of this one authority, seems to me a clear
one, I must act on my own impression. The ques-
tion will probably still be considered doubtful, but I
ought not, at all events, to leave it as one where a
decided opinion bad been expressed on one side
only, wben my own is equally clear on the other.

It may be desirable to call to notice, that it is the
fault of native holders of property if any inconve-
nience result from the present decision, supposing
it to be established as law. The law to which I con-
sider them as subject gives the most unlimited
freedom of disposal of property by Will ; and any
man therefore who wishes his possessions to devolve
according to the Mahometan, Chinese, or other law,
has only to make his will to that effect, and the
court will be bound to ascertain that law and apply
it for him.

The general residt is, that the administration
granted to the widow must be revoked, the Will of
Abdullah being established as a valid instrument.
StiU it does not appear to me to amount to a com-
plete will, constituting Growk the executor of all
his property ; it is only a disposal of part in his fa-
vour, and contains nothing to show that he was in-
tended to have the general management ; if not, he
is not designated as executor, and he can only ob-
tain administration with the will annexed in the
usual manner, by giving notice and filing a proper
petition. The present petition may, however, if he
wishes it, be amended to that effect, without payment
of costs. But it is necessary to observe that the
widow may very probably have a better claim to ad-
ministration with the will annexed than he, if she
wishes to dispute his right. Where the testator
constitutes an executor, the court has nothing to do
with the selection ; the Will, if effective at all, is ef-
fective in that particular. But where the will ap-
points none, and administration is therefore neces-
sary, the court has its usual duties to perform, and

(10)

tlie parties their usual rights to enforce. The fact
that the testamentary paper gives a benefit to a par-
ticular individual, may, according to the circum-
stances of the- case, be a strong reason for either
selecting him for the administration, or for exclud-
ing him from it. But the regular course of peti-
tion and notice must be adopted, to give the parties
interested an opportunity of coming in and urging
their claims.

The prayer therefore of Growk's petition is granted,
as far as it respects the revocation of the adminis-
tration granted to the widow. As far as the grant
of any powers to himself is concerned, the petition
must be amended. It would be premature to make
any order about the costs, while it is yet uncertain
who will have the general management of the estate.
But I entertain no doubt that the widow will finaDy
be entitled to receive the costs of her present oppo-
sition out of the estate. The question must at least
be considered as one very fit for discussion ; and the
estate therefore may properly be charged with the
costs incurred, in consequence of the doubtful lega-
lity of the course adopted by the testator.

COURT OF JUDICATURE.

Malacca.
In re Chu Siang Long's Estate.

Adopted children of a Chinese entitled to joint admiaistration of
his Estate in preference to his nephew.*

Pinang Gazette, 20 Feb. 1858.

Memo by the Senior Sworn Clerk for the infor-
mation of the Honorable the Recorder.

Estate of Chu Siang Long, deceased.

Letters of Administration ad Colligendum having
been granted to the Senior Sworn Clerk for the
time being, the Resident Councillor is desirous of
ascertaining to whom the assets realized, viz. drs.
2441.88 and half, after liquidating all debts up to
this date, should be paid ; whether to the natural and
adopted daughters of the deceased and to his adopted
son jointly or to his lawful nephew, and whether the
English or Chinese Law and Custom is to prevail
in this instance at Malacca. See Minute Book here-
with sent Vol. 5th, Pages 316,317,319 and 320 to-
gether with the Papers filed in the above Estate. I
am informed that the Parties interested wiU file a
Petition on or before Tuesday next touching the dis-
tribution of assets.

Court House, 29th April 1843.

Saturday.

I find, on reference to a note made by me on the
23rd August last, that I have already in effect deci-
ded this question, by giving it as my opinion that
Chu Sing Kee and Chu Gan, the adopted son and
daughter of deceased, who had applied jointly for
Letters of Administration to the Estate, were en-
titled to administer in preference to the nephew Hee
Toh Sing. For the same reason I think the assets

* This decision has been subsequently overruled, see Judgment in
Eeg. vs. WlUans, 3 Journ. Ind. Archip. 41 where it is stated by the
Judge " I then (1858) held that the adopted son of a Chinaman domi-
ciled here was not entitled, in that character, to administration, or
to a distributive share of his adopted father's land." And see also
pages 40,45 and 46 of the same Judgment on the subject, and see in
the Goods of Meh Allang, post App. III. — Ed.

(12)

should be divided between the son and daughters
and that the nephew is not entitled to share with
them. The ground of my decision is that I take
the same view of the Charter as Sir B. Malkin did
with regard to the Law to be administered in these
Settlements under that instrument, and which cannot
be better expressed than in his own words. In his
able Judgment in the Goods of Abdullah in March
1835 Sir Benjamin observes "In the general ex-
pression the Charter seems to have intended to give
a certain degree of protection and indulgence to the
various nations resorting here, not very clearly de-
fined, yet perhaps easily enough applied in particu-
lar cases, but not generally to sanction or recognize
their law." And in his letter of the 17th July 1837
to Mr. Secretary Prinsep he remarks as follows
" But with respect to the Law whereby rights are
constituted and established, I understand the Gover-
nor General to consider that it at present is, and
ought in general for the present to continue, the
Law of England ; modified indeed by considerations
how far some of its particular provisions and enact-
ments are suitable to the circtimstances of the Colo-
ny, and administered in all cases with large and li-
beral regard to the manners, usages and religions
of the different nations subject to its operation, but
containing no provisions or principles which can-
not be based upon that Law, so modified and con-
strued." "It wotdd seem very difficult, for instance,
to refuse to treat a Hindoo son by adoption as a son
and consequently as an heir in the absence of other
sons ; or to declare the eldest son of a Mohometan
not to be the heir, because his father had two wives
at once, and he was the son of second marriage." "*
In the 5th Paragraph of the Report made on the 8th
February 1842 by the Law Commissioners on the
Judicial Establishment of the Straits, they express
their concurrence in Sir Malkin's view of the spirit
"* See Judgment in the goods of Lao Leong An ( 1867 ) post.

(13)

in which the law of England should be administered
in these Settlements ; and I have myself adhered in
practice to the same principles, frequently directing
the 2 or 3 widows of a Mahomedan Intestate to
rank as one widow, and their several Children as
one family, in tlie distribution of the Estate. In
one of the Petitions in this case, that of Gan Nio,
dated 25th August 1842, the case of Mootoo Vallee
is cited to shew that a natural daughter has been con-
sidered as legitimate for the purpose of inheritance.
I am not aware of that case (which I suppose how-
ever, is among tbe Malacca Records), but repeat, for
the reason above stated, that the adopted son and
daughter are, in my opinion, alone entitled to the
Assets.*

Wm. norris.

Malacca, 3rd May 1843.

* See Judgment in Eeg. vs. Willans (1858) 3 Journ. Ind. Archip.
47 note b, where the Chinese law is stated to be unfavorable to even
legitimate daughters, except on failure of male relatives. — Ed.

Court of Judicature.

Singapore.
In re Chong Long's Estate.

Will by a Chinese directing rents and profits of his lands in
Singapore to be expended in the performance of " Sinchew " cere-
monies, to the memory of himself and his deceased wives, — upheld.*

Straits Times, 14 July 1857.

On Thursday the 25th June the Hon'ble Sir Richard
McCausland, Recorder of Singapore, gave judgment
in a case which has been pending some years in tbe
Court, but which from various causes, as the death
of some of the parties, the decease of the late Re-
corder, caused frequent postponement. The ques-
tion at issue was one of the highest importance to

* This case has been overruled by Choa Neow Neo vs. Spottis-
woode, post App. I.

(14)

tlie whole native conmmnity, involving the appro-
priation of the estates of deceased persons to the
performance of the peculiar religious observances of
the deceased directed by the Will. The suit in
question related to the estate of Choa Chong Long,
a wealthy Chinese, a native of Malacca, who left a
large property, the rents and profits of which he di-
rected to be expended in the performance of certain
ceremonies called " Sin-chew," to the memory of
himself and his deceased wives ; or in other words
he directed that ample provision should be made,
out of his estate, for the purpose of feeding his own
ghost or spirit and the spirits of his deceased wives —
an idea universally believed by Chinese, who deem
it a disgrace for the spirits of their ancestors to beg
of other spirits either food, raiment, money, or other
things which they believe to be necessary to the spirit
after its departure from the body. These spirits
are said to hover near the abode of the living rela-
tions, and are fed by the savour of cooked meats,
whilst clothes and money are transmitted though
the medium of burned papers on which are drawn
different articles of clothing, square marks of gold
and silver foil, piles of which may be seen burning in
our streets almost every day, in front of the Chinese
houses and shops, or at the grave-yards. The
savour of the viands having been partaken of by the
spirits the grosser parts are eaten by those who per-
form the ceremony, and various criteria are laid
down for determining when the spirit is satiated;
if the indications are unfavorable more pigs, ducks,
cakes, &c., are prepared. No deity is invoked du-
ring the ceremony — the whole object of thefestivity
being to satisfy the necessities of the spirit : and the
performance of this duty is regarded as the highest
evidence of filial duty and obedience.

We have penned the foregoing explanations for
the purpose of making our distant readers acquaint-
ed with such particulars as will enable them to un-

(15)

derstand the learned Recorder's judgment, as also
to illustrate to what extent the free toleration of re-
ligion is allowed under British rule.

The Will of the Testator in this case bears date
the 24th September in the Year of the Christian
Era 1836. It is written in English, and was prepar-
ed by some person acquainted with the forms of En-
glish Conveyancing, and its Execution is mtnessed
by 3 English gentlemen resident at the time at Sin-
gapore.

The Testator declares, that he makes his Will for
the " avoidance of all controversies and dispiites of
and concerning his wordly substance and property
after his decease," and then proceeds to give lega-
cies of drs. 500 a piece to each of his 6 children
therein named, viz. 2 Sons and 4 Daughters ; and
he declares these several sums of money are given
to his said sons and daughters in full of all claims,
either in Law or in Equity, or by any usage or cus-
tom, upon his Estate or Property after his decease
in any wise howsoever : and further that none of his
sons or daughters already mentioned, nor his son
therein after mentioned, should be permitted in any
wise, or at any time thereafter, to interfere or inter-
meddle with his Estate or Property after his decease ;
and the Testator then directs a sum of 15 Dollars
per month to be paid to the aftermentioned son, du-
ring his life, and a moderate sum for the expense of
his funeral, as his said last mentioned son was un-
able to earn any subsistance or provide for himself.

The Will then recites that the Testator was pos-
sessed of certain Houses and Immoveable Property
at Malacca, and also of certain Houses, Shops, Ba-
zaars, and Plots of Ground at Singapore, on one of
which plots sitiiate imder Government HiU, and im-
mediately adjoining Campong Malacca, he was then
erecting a Building for Charitable purposes and for
the performance of Religious ceremonies, according
to the cnstom of his ancestors, called Sin-Chew, to

(16)

perpetuate the memories of his departed wives, and
also of himself after his decease ; and mentions that
he had in addition to his children already named,
another son of the age of five years, who was an ob-
ject of his especial affection, and for whom he in-
tended to make a particular provision ; and directs
that all debts due to his Estate should be called in,
and all his Moveable Property be converted into mo-
ney, and that out of the proceeds thereof as well as
out of whatever funds of his might be in the hands
of himself or of his Agents or Executors at the time
of his decease, the aforesaid legacies shoidd be paid
to his 2 Sons and 4 Daughters ; and that after such
payment the clear residue thereof, not including his
House or Lands in Singapore or Malacca, should be
ascertained, and that one-half thereof should be
paid to his favorite son absolutely, but in case that
son should not live to attain his full age, then that
such share or moiety intended for him should be-
come applicable to the Charitable purposes after men-
tioned, and the other half thereof the Testator di-
rected should be invested in the names of his Exe-
cutors and Trustees after mentioned either in the
Security of the East India Company or in other
good and sufficient Security bearing interest, the
whole of which said Interest, subject to necessary
charges and also to the monthly payment therein
after directed to be made, was to be expended in
such Sin-Chew or Charity in and to the names of
himself and of his wives already mentioned, such
Charity to be performed 4 times in each year at the
least, and as much oftener as the funds applicable
thereto would admit of, at the building so erected by
the Testator for such purpose as before mentioned.
The Testator then wiUs and bequeaths the whole
of his Landed Property, (except one House and
Garden in Singapore which he directs to be sold and
the proceeds to be subject to the general purpose of
his Will), to 3 English gentlemen, their Heirs, Ex-

(17)

ecutors and Administrators for ever, upon Trust, to
receive tlie Rents, Issues and Profits thereof, and
thereunto to keep the Premises in repair, and to in-
sure the same against fire, and after deducting same
and all other necessary expenses, to pay one moiety
of the clear residue of such rents, &c., to his favo-
rite son half yearly, and not oftener, during his na-
tural life ; and the other moiety to be laid out and
appropriated in the performance of such Charity as
is therein-before directed and mentioned ; and, sub-
ject to the monthly payment of the 15 dollars and
the deductions above mentioned ; from and after the
decease of his favorite son, the whole of the Rents,
&c., to be expended in the performance of the same
Charity under and subject to the control and ma-
nagement of his Executors and Trustees, or any per-
son or persons duly delegated by them for that pur-
pose.

The Testator then declares it to be his Will and
wish that the Governor of P. W. Island, Singapore,
and Malacca, or the Resident or Deputy Resident
Coimcillor of Singapore, or one of them, according
to seniority, and being willing to act, should be a
Trustee or Trustees of his WiU, to see his said Cha-
rity duly administered and faithfully carried into
effect, according to the mode practised in cases of
Native Charities, and Charitable Institutions, at Cal-
cutta, Madras, and Bombay, and permanently esta-
blished under the orders of the Supreme Court of
these Settlements, or of the Supreme Court of Judi-
cature of Bengal, if his Executors and Trustees
should deem it advisable, or necessary.

The Testator then directs that his Houses and
Land should remain in his own name for ever, ac-
cording to the tenor of the original Grants thereof,
and then constitutes the 3 English Gentlemen be-
fore named, viz. Samuel George Bonham, Richard
Fownes Wingrove, and William Spotiswoode, Es-
qres., Executors and Trustees of his WiU ; but that

(18)

in case Bonliani and Wingrove should not be in the
Straits at the time of his decease, then that the Go-
vernor of the Settlement, or the Resident or Deputy-
Resident Councillor, or the Senior Authorities at the
Straits or some or one of them, or the professional
Judge, Justice or Law authority, at the time of his
decease, should be executors and Trustees and to see
the same carried fully into effect ; his will and wish
being to preserve the funds intended to be applied
by him to such Religious and Charitable purposes
as aforesaid from being embezzled or made away
with by his sons, daughters, and relations, or other-
wise diverted from the said purposes, doubting not
but that the East India Company and those in au-
thority under them would by due enforcement of
Testator's Will, encourage wealthy, honest and in-
dustrous Chinese and other settlers in the East In-
dia Company's territories to follow Testator's exam-
ple, and thereby ultimately advance the wealth,
prosperity and permanency of their possessions in
these parts.

The Testator died on the 18th December, 1838
at Macao, in China, and Probate of his WiU was
granted to Mr. Spottiswoode, one of the Executors
therein named, on the 11th February, 1841, saving
the rights of the others Executors named therein.

The son to whom the monthly payment of 15 dol-
lars was made died in the month of June 1850, and
the favorite son died on the 10th July 1855, leaving
a widow and an infant son of the age of 2 years and
upwards.

After the death of the Testator various applica-
tions were made to the Court from time to time on
the part of the heirs * of the Testator to have a share
of the Sin-Chew Fund paid to them, in order to en-
able them to perform the ceremonies to the memory
of their deceased parents ; and on the 4th December
1854 a Reference was made to the oflBcer of the

* Sic.

(19)

Court to inquire into and report upon the nature of
the religious ceremony of the Chinese called Sin-
chew, and observances and objects, and whether it
partook in any manner of the nature of a Charity,
and if so, whether any particiilar Charity consistent
with the religion, manners, and cristoms of the Chi-
nese, was intended by the Testator in his said Will.

In obedience to this order a Report was made by
the Registrar of the Court, dated 24th August 1855,
setting forth the nature of the Religious Ceremony
of the Sin-chew, and the evidence on which that
Report was made.

The Report found that the Sin-chew was a reli-
gious ceremony of the Chinese in commemoration of
the decease of their ancestors ; that it did not par-
take of any Charity, and that the word Charity must
have been introduced by the writer of the Will un-
der some misconception of the Testator's meaning.

On the return of this Report application was made
by Petitions to the Court on its Ecclesiastical side, on
behalf of the claims of the Daughters of the Testator
and their husbands, and of the widow of the favou-
rite son (then late deceased) and his infant child,
that the Testator should be declared to have died
intestate as to the sums of money and other proper-
ty bequeathed by him for the purpose of the Sin-chew.
These Petitions were severally heard and supported
by able arguments before m.e,'''' by Mr. W. Napier, on
behalf of the widow and infant son of the Testator's
favorite son, and by Mr. Aitken and Mr. Earl for the
daughters of the Testator, and were strenuously and
ably resisted by Mr. Woods on behalf of Mr. Spotis-
woode, the acting Executor of the Will, by whom
the affairs of the Testator have been administered,
and the accounts of the Estate have been duly kept,
and rendered to the Court from time to time.

From the Report of the Registrar it is clear that
this is not a Bequest to which the Court of Chan-

* Sir B. B. McCaualand, knt. Recorder of Singapore. — Ed.

(20)

eery in England would give effect. No words have
been used by the Testator which could control the
applications of the Fund to the purposes of Religion,
(such as that Court would recognize), or for the edu-
cation of Youth, or for the benefit of the Poor. Nei-
ther are there any Charitable, Beneficial or Public
Works designated by the Testator which that Court
would carry out. It is, accordingly, strongly pressed
on behalf of the daughters of the Testator, and of
the widow of his favorite son and her infant child, —
parties for whom provision has been made by the
Testator, and who are prohibited by the terms of the
Win from interfering or intermedding, in any wise,
either in the Testator's Estate or Property, after his
decease, — this bequest, being for a superstitious use,
according to the English Law, should be declared
by this Court to be void, and that the next of Kin
of the Testator became entitled to the property.

This proposition appears to be based upon en-
tirely too narrow a ground. The application of the
principle contended for would prohibit any Testa-
mentary appointment being made for the observance
and performance of any of those rites and ceremo-
nies which are deemed essential to their welfare and
happiness, as well during life as after death, by the
countless mtdtitudes of Asiatics who are under Bri-
tish rule, but living according to their respective re-
ligions, manners, usages ; and if pushed to its ex-
tent, in the present case, would prevent even the
repair or improvement of the building which the Tes-
tator had erected for the performance of Religious
Ceremonies according to the custom of his ancestors,
and in which such ceremonies have been performed
with the sanction of this Court, by persons duly de-
legated by the Executor for that purpose according
the Testator's Will.

By the Royal Charters of 27th November, 1826
and 10th August 1855, this Court is authorized to
exercise the same Jurisdiction in Civil and criminal

(21)

cases, as in exercised by the High Courts of Chan-
cery and the Supreme Courts of Common Law res-
pectively in England, as far as circumstances will
admit ; and by the same authority, this Court has
and exercises an Ecclesiastical Jurisdiction, " so far
as the several religions, manners, and customs of
the Inhabitants of the Settlement will admit."

The proposition contended for assumes that by
this authority, the provisions of the several English
Statutes against Bequests to superstitious uses, of
Mortmain, and against accumulations of Income,
have been respectively transferred to India, as part
of the Law of England.

Now, independently of the exceptions contained
in the Statute of Mortmain in favor of the two Un-
iversities, and certain other seats of learning ; and
of property in Scotland, and of the several excep-
tions which have from time to time been engrafted
on it ; it has been holden, that as the Statute is
Local, it does not extent to prohibit disposition of
real Estate, or personal property connected with real
Estate, in Ireland (a) or in the West Indies, (b) or
in the East Indies (c) or to the Colonies (d).

Looking therefore to the history of this country,
it appears to have been the policy of the framers of
the Charter to induce as many persons as possible to
become resident in the Settlement, and not inter-
fere with the observance of their several religions,
manners, and customs, nor with the free disposition
of their Houses, Lands, or Moveable Property ; — and
considering the grounds of the decisions above re-
fered to, and that the Statutes against superstitious
uses, and the accumulation of Income are Laws
wholly English, and incapable ^- without great incon-
gruity of effect, of being transfered, as they stand,
into the code of the Country inhabited by people of
so many different religions, manners and usages,

* But see obiter dictum in the Judgment of Reg. vs. Willans (1858)
3 Journ. lud. Archip. 38.

(22)

the Court is of opinion that it is bound — though not
entirely without doubt, — to declare this bequest va-
lid, and to give effect to those provisions of the
Charter which would otherwise be rendered wholly-
nugatory and inoperative, and which direct that —
" all or any of the powers thereby committed to the
" Court shall be executed with an especial attention
" to the different religions, manners and usages of
" the person who shall be resident or commorant
" within its jurisdiction, and accomodating the same
"to their several rehgions, manners, and usages,
" and to the circumstances of the Country, as far as
" the same can consist with the due execution of
"Law, and the attainment of substantial justice."

COURT OF JUDICATURE.

Prince of Wales' Island.
Nonya Siu vs. Oothmansah Merican.

Subsequent Marriage by Chinese females in this Colony, after
divorce, valid. The law of China and the local custom as to guardian
for Marriage (Wallee as it is termed in Mahomedan law), considered.

Pinang Gazette.

Judgment of Sir P. Benson Maxwell, Knt.
Recorder.

Nonya Siu was married to Lim Bun, left him, and
lived afterwards with Hui Sian till his death. In
1845 a deed was executed by her and Hui Siau con-
veying certain lands and tenements to the defendant,
and the chief question in this cause was whether the
conveyance was binding on her, as being a married
woman at the time when it was made. The marriage
to Lim Bun was admitted ; but it was asserted on
the plaintiff's part and denied on the defendant's,
that she had been divorced by her first husband and
married to Hui Siau. The plaintiff alleged that she

(23)

had been divorced by mutual consent, according to
Chinese law ; that the cause of quarrel between her-
self and her husband which led to the divorce, was,
that he complained of her indolence ; that after the
divorce she lived for a year with her sister Nonya
Lian ; and that at the end of that time she married
Hui Siau. On the defendant's part evidence was
adduced to shew that the cause of quarrel was that
the plaintiff had been detected carrying on an intri-
g-ue with Hui Siau, and that while she stayed at her
sister's Hui Siau lived with her, and after a time
both took up their abode in the town, and afterwards
in Batu Uban. Evidence was also given on both
sides as to reputation, some of the witnesses alle-
ging that the two passed as man and wife, while
others had always understood that the plaintiff lived
with Hui Siau as his mistress (ikot sama dia). Chi-
nese witnesses were examined on the subject of the
Chinese law ; but the evidence shewed that their in-
formation was of the slightest character. Some of
them went even so far as to deny that a divorced
woman coidd marry again. It is unnecessary, how-
ever, to refer further to the evidence, as the Recor-
der relied solely on Staunton's translation of the
Chinese Penal Code.

The case was heard at the last December sittings,
and the Recorder took time to consider his judg-
ment. On a subsequent day the learned Judge, in
delivering judgment, said that he considered that
the divorce had been clearly established. The ques-
tion was whether the alleged second marriage had
taken place. The Chinese law permitted a woman
to marry a second time, unless she had received an
honorary title from the Emperor during her first
husband's life (Staunton's Penal Code p. 112.) But
to render the second union a marriage, there must
be a person to give the woman away to the new hus-
band and a delivery of marriage presents, otherwise
it was considered simply as a case of concubinage.

(24)

(lb. p. 113). If this rule were in force here, it was
plain that the marriage set up could not be sustain-
ed, for the plaintiff admitted that neither her uncle,
the head of the family, nor any one else, gave her
away. But the rule could not be held essential here
under Enghsh law, where a very different degree of
liberty and respect was accorded to women than in
China or other part of the East. In China a wo-
man appeared to be, as in India, in a state of perpe-
tual tutelage, and to be either under a general inca-
pacity to contract, or to have no right to dispose of
her person as she pleased. The necessity of giving
away was not so much a part of the ceremony as a
consequence of the general law relating to the sta-
tus of the woman. But here this must be deter-
mined by English, and not by Chinese law. It
must be taken, therefore, that the uncle's not giving
her away did not make the ceremony a nullity, if in
other respects it was a valid marriage.

The question however, remained, had the plain-
tiff ever been married to Hui Siau ; and on this point
the evidence was conflicting. The plaintiff said that
several persons were present at the marriage ; Nonya
Engku, Nonya Luan, her sister Chiah Lian, Chau
Su Phan and Chiah Hin. The two latter were dead.
Lian denied that she was present. Engku was not
called. Tian Tek, who was said to have been at the
feast, denied that he was. The only persons who
gave any evidence in the affirmative were the wife
of an actor who said that she was sent for the bride,
a man who said he carried trays to her house with
candles, pigs-feet and fowl in the morning, and as-
sisted in laying the table for the feast in the after-
noon, and one of the guests who said that he was at
the feast. It was not improbable that there was a
feast at some time ; but though that might be some
evidence of a marriage having taken place, it did
not constitute a marriage. On the other hand,
Nonya Lian positively denied that she was present.

(25)

The plaintiff admitted that Nonya Sin, another sister,
was not there ; her half sister Nonya Eh Long was
also absent ; so that the evidence before the Court
failed to shew that any of her relations were present.
Again, though he was of opinion that it was not es-
sential to the marriage that the woman should have
been given away by her uncle, yet the fact of her
not having been so given away, according to the
usage of her country, had a very material bearing
on the question whether there had been any mar-
riage de facto. The Chinese were more than any
other people attached to their usages, and the ad-
mitted absence of the uncle therefore threw great
doubt on the question. Besides, looking to all the
circumstances, was it likely that there was a mar-
riage ? From the evidence, though conflicting, he
had no doubt that these was cohabitation before the
marriage. The divorce paper did not mention the
adultery, but it was natural that it should not. But
it was more probable that this was the real cause of
the divorce than the indolence of the wife, or her
temper, as she alleged, especially as several witness-
es had spoken to the fact of the adultery. If there
had been a marriage, one would have expected that
the family would have taken care that it took place
as publicly as possible and with full ceremonies.
The whole object of it would have been that the
woman's position in life should be rehabilitated, and
that the marriage show throw a veil over her pre-
vious misconduct. This assumed, indeed, that the
woman and her friends were sensitive on the sub-
ject of marriage or no marriage. But it appeared
clearly in this case — as it had appeared in every other
case in which the subject had been mentioned in
Court — that the Chinese (of this place at all events)
visited with no social ban or degradation, women
living in a state of concubinage. Their wives visi-
ted them and associated with them on terms of equa-
lity. They were addressed as wives (bini). There

(26)

appeared to be no inferiority in their social status.
What object then could there have been for a mar-
riage, after living for a year with, the man, as the
plaintiff would appear to have done ? None appa-
rently, and coupling this with the important fact
that the woman had not been given away by her
nearest male relative, with the absence of all publi-
city, and with the fact that no witnesses had spoken
to the marriage but the actor's wife and the man
who carried the tray with fowls, &c., while of others
said to have been present, some denied it, and some
were not called, he (the Recorder) must come to the
conclusion that there was no marriage.

COURT OF JUDICATURE.

PINANG.

The Hon. Sir Benson Maxwell, Knt., Recorder.
Hawah v. Daud.

Mahomedan Married Woman's Personalty * is her own separate
Property and does not belong to her Mahomedan husband by marital
right. The Mahomedan law considered. 9th March, 1865.

Pinang Gazette.

The petition in this case alleged that the plantiff,
being seised and possessed of real and personal pro-
perty, married the defendant some years ago. The
latter was without property ; his occupation in life
was that of a police peon. He left the police short-
ly after his marriage, and until about a year ago liv-
ed with his wife, and upon her property. A year
ago, he got possession of her title deeds, gold orna-
ments and money, divorced her, and turned her out
of his house. In his answer, the defendant alleged
that the ornaments had been purchased by him, that
the money which he had taken was his own and had

* As to her realty or lands in the Straits see Cader Meydin v.
Shatomah (1868), post, and Judgment in Eeg. v. Willans. 3 Journ
Ind. Arch. N. S. 45. 46.

(27)

never been his wife's and h.e denied the divorce and
expulsion. The object of the suit was to recover
the property taken and for this purpose that the
defendant might be declared a trustee for the plain-
tiff.

The Recorder said that he had no doubt upon
the facts of the case ; and after examining the con-
flicting statements of the parties, he held that those
of the plaintiff were substantially true, and those of
the defendant unworthy of credit ; except as to the
subject of divorce, as to which, he said, it was unne-
cessary to express any opinion.

He proceeded, then, to observe that the legal
question which was raised by the petition, was one
to which he had often given consideration before this
suit. By the law of England, the hixsband on mar-
riage became seised of the wife's real estate during
the marriage, or for his own life, if a child was born
alive. He became, further, upon the marriage, ab-
solutely entitled to all her personal effects, and to all
the debts owing to her, and other rights, which were
reducible, and which he reduced into possession
during the marriage. He became bound, on the
other hand, to support her during the marriage, that
is, during her or his life. He also became bound
for her debts contracted before marriage ; but that
liability lasted only as long as the marriage ; as soon
as the marriage was at an end, his liability was at
an end also. Whatever might be thought of this
state of law, as regarded the wife, it was at all events,
the law of a people which whom the marriage con-
tract was once indissoluble, and if dissoluble now,
was only so for the greatest breach of it by the wife,
or at her express instance, and not by the party, but
by a Court of Justice. But according to the Maho-
metan law and Mahometan usage, marriage was a
contract dissoluble at the will and pleasure of the
husband, and dissoluble by himself. He had but to
pronounce the word and the marriage was at an end.

(28)

On the other hand, the Mahometan law threw its
protection over the wife, leaving her in full posses-
sion of all her property, rights and ability to contract.
To call such precarious unions by the same name as
our own marriages, was, perhaps to give one name
to two very different things (see Lord Brougham's
judgment in Warrander v. Warrander 2 CI. & F.
448).® But still, that the Mahometan marriage
was a good marriage in the eye of our law seemed
incontestable ; at all events it could not be contested
here, without bastardizing the mass of the popula-
tion. And the validity of the divorce was equally
incontestable. A resumption of co-habitation with-
out re-marriage would be against the Mahometan
law and religion, and it could not be enforced by our
Courts. The question which then arose was whe-
ther the marital rights of a husband over his wife's
property were the same in Mahometan marriages as
in the indissoluble, or virtually indissoluble marri-
ages of Christians. If they were, a Malay, under
the combined operation of his own religious law and
of the law of the Settlement, was able to strip a
woman of all her personal property, and after the
birth of a child to keep her real estate, also, for his
life, and at the same time to turn her out into the
street penniless, absolving himself, by the same
step, from liability for her antenuptial debts. If
such consequences were the logical result of such a
state of law, there were assuredly grounds for paus-
ing before holding that the law was so. It seemed
to him that it might be that the Mahometan mar-
riage was a good marriage as regarded its essential
character, sanctioning and legalizing the union of
the man and woman, and legitimising their off-
spring, and yet not be that species of marriage to
which the legal incidents as to property, rights and
disability attached. Or it might be that if the hus-
band was at liberty to dissolve his marriage, he be-
* Et vide Judgment in Reg. v. Willans (1858), supra, 43,44.

(29)

came impliedly bound, on exercising that power, to
restore his wife, as regarded her property and rights,
to the position or condition in which she was before
the marriage, or (what woixld be the same thing) to
place her in the position in which she would be un-
der the Mahometan law, upon the divorce. It was
not, however, necessary in the present case, to deter-
mine whether any of these views were well founded ;
for if the property and rights of the Mahometan wife
vested in her husband in the same manner as those
of a Chi'istian wife, at law, there would yet be good
ground for holding that the man in whom such pro-
perty and rights become vested by virtue of a con-
tract which he was at liberty to rescind at his plea-
sure, impliedly undertook to hold them as a trustee
for the benefit of his wife, in equity, in the same
manner and to the same extent as the Mahometan
law gave them, or left them to her, on her entering
into the Mahometan contract of marriage. Implied
contracts and implied trusts were not strange either
at law or in equity. In equity, if one bo^lght and
paid for an estate in the name of a stranger, or con-
veyed it to him without consideration, the latter
held it as a trustee for him, or as the expression was,
there was a resulting trust in his favour. When
freehold land was purchased by partners for part-
nership purposes, though at law they might be joint
tenants of it, equity impressed the property with the
character of personalty. When a husband died with-
out having obtained administration to his wife, her
administrator was in equity a trustee for his perso-
nal representative. In these and a multitude of other
cases, implied trusts were raised to obviate injustice
and meet the presumed wishes of the parties, or
what would have manifestly been their wishes if the
question had occurred to them. The Recorder
thought that the same principle might be applied to
cases like the present. In any view of the case,
however, whether the wife's property remained her

(30)

own at law, unaffected by the common law rules
wliicli gave the husband certain rights over it in
Christian marriages, which was perhaps the true
view, or whether the husband was under an implied
contract or an implied trust, it seemed to him (the
Recorder) that the plaintiff was entitled to the relief
prayed in her petition. He would therefore order
the defendant to deliver up the ornaments and mo-
ney to his wife, in the same manner as he (the Re-
corder) would have ordered him to do so if they had
been settled to her separate use and for her own
personal enjoyment, and he should restrain him by
injunction from receiving the rents and profits or
otherwise intermeddling with the real estate of the
plaintiff.

COURT OF JUDICATURE.

MALACCA.

Chulas and Kachee v. Kolson binte Seydoo Malim.

Plea of Coverture by a Mahomedan married woman is no answer
to an action on iier Bond.

Singapore Daily Times, 20th March, 1867.

Judgment of Sir P. B. Maxwell, Knt., Recordee.

In this case, which was tried before me lately at
Malacca, the question arose whether to an action on
a bond, a plea of coverture, by a Mahometan woman,
was an answer to the action, and I took time to con-
sider my decision.

The question how far the general rides of the law
of England are applicable to races having religions
and social institutions differing from our own is of
occasional recurrence in this Court, and it is seldom
free from difficulty. It has been repeatedly laid
down as the doctrine of our law that its rules are
not applicable to such races, when intolerable injus-

(31)

tice and oppression would be the conseqiience of
their application. Thus, in the case of the Advo-
cate General of Bengal v. Ranee Surnomoye Dos-
see, 2 Moo. N. S. 22, it was held that the law which
imposes the penalty of forfeiture of property for sui-
cide, was inapplicable to Hindus. The absurd in-
justice of punishing a Mahometan for bigamy or
polygamy is another and familiar instance of a por-
tion of oiir law being inapplicable to a part of our
population and therefore not applied to them. If
the criminal law may be made to bend in this man-
ner to the exigencies of natural justice, the civil law
must be at least as flexible, and where our law is
wholly unsuited to the condition of the alien races
living under it, their own laws or usages must be ap-
plied to them on the same principles and with the
same limitations, as foreign law is applied by our
Courts to foreigners and foreign transactions. They
must be regarded as persons having foreign domi-
cils and governed for many purposes by this law,
and as if they were residing among us temporarily.
Having this rule in view, I came to the conclu-
sion, in a case of Hawah v. Daud,*' which came before
me in Pinang two years ago, that the rule of Eng-
lish law which vests in the husband various rights
in the property of his wife were inapplicable to a
Mahometan Marriage. Considering that by our law
a husband is seised of his wife's freeholds diiring the
marriage, or during his life, if a child is born alive,
that he is not only entitled to enjoy but even to dis-
pose of her chattels real, during the coverture, and
that he. becomes absolute owner of all her personal
property in possession, and of all " in action " which
he reduces into possession during the marriage, be-
ing liable for her antenuptial debts and engagements
only as long as the marriage lasts, it appeared to
me impossible to hold that such a state of law could
be applied to a marriage dissoluble at the will of the

* Vide ante page 26.

(32)

husband, without intolerable injustice to the wife
and to others. Our law, transmitted to us from
early times and a rude state of society is, indeed, so
little suitable to ourselves now that no woman with
property can, without great folly leave it, on marry-
ing, subject to that law ; and settlements are neces-
sarily made to protect her fortune from its operation.
But if she is so improvident as to neglect this pre-
caution, the contract of marriage is at least, indis-
soluble (or virtually so) and she acquires that right
of being maintained by her husband during his and
her joint lives. The Mahometan woman's contract
is wholly different ; it may be dissolved at any mo-
ment by her husband, and her right to maintenance
goes with it. But on the other hand, her right of
property and her powers of contract are unaffected
by the marriage ; under Mahometan law she remains
in this respect like an English feme sole. We have
never questioned the Mahometan husband's right to
exercise that power of repudiation which is one of
the incidents of • the Mahometan marriage ; why
should we question any of the other incidents of
that contract ? why should the right of the hiisband
be left unaffected by our law, but those of the wife
be denied or ignored ? It seems to me that it would
be as illogical and unscientific, as it certainly would
be oppressive and unjust to give to the husband all the
rights both of a Mahometan and of a Christian and
at the same time to take fi-om the wife her rights as
a Mahometan and impose on her the forfeiture and
incapacity which fall by our law on Christian women.
If the Mahometan law were to prevail as regards the
husband's right of repudiation, but the English law
were to prevail in all that regards the property and
status of the wife, it would follow that every Maho-
metan husband would have it in his power, not only
to cast off under his own law, his wife whenever he
pleased, but by force of the Christian law to send
her into the world stripped of all her personal pro-

(33)

perty and of her real property too, for tlie rest of his
life, if she had the misfortune to bear him a child ;
absolving himself by the same act from the obliga-
tion of paying her antenuptial creditors with her
money. Whether the mischievous consequences of
thus attaching to one contract the incidents of ano-
ther might not be adequately averted by the means
by which many hardships of the common law have
been at various times averted at home, viz : by crea-
ting an implied trust or an implied contract, is a
question which I have not omitted to consider ; but
it seems to me that to meet the evil in this way
would be to deny that general rule which I mention-
ed at the beginning as a recognized part of our law
which makes the common law so flexible and so
adaptable to the various races subject to it ; and the
conclusion to which I have come is that at common
law, and without any recourse to equity or to equita-
ble doctrines, the rules which vest in the English
husband various right in his wife's property do not
apply to a Mahometan marriage, but that her pro-
perty continues vested in herself in the same way
as if the Mahometan were the law of the land.

The question now before me is whether a Maho-
metan married woman is imder any disability to
bind herself by a bond. Here again, if the ques-
tion were brought within the operation of the princi-
ples of Courts of Equity, the woman would be liable
as far as her separate property extended to the pay-
ment of this bond, and to the performance of her ge-
neral engagements ; Hulme, vs. Tenant 1 Bro. C. C.
16, Murray vs. Barlee, 3 M. and K. 223. But I see
no necessity for resorting to equity. It seems to me
that the question of her capacity or incapacity to
contract must be detenuined, and for the same rea-
sons, like that of her rights to property, by the law
which governs her contract of marriage, viz : the
Mahometan law ; and for these purposes the Maho-
metan subjects of the Queen here must be consi-

(34)

dered as governed by the law of their religion in the
same manner as the rights and capacities of a foreign
husband and wife are governed by the law of their
Matrimonial domicil. A foreign woman could not
set up, any more than an infant, her disability to
contract unless the law of her own country incapa-
citated her from contracting, Male vs. Roberts, 3 Esp.
163 ; and if, as is the case, the Mahometan law does
not impose on her that disability, her plea of cover-
ture is no answer to the action.

Indeed, it is not necessary in support of this view
to seek for analogies in cases to which foreign law is
applied on principles of comity. We have at home
exceptions recognized by the common law to the
married woman's general incapacity to contract.
Thus, by custom, in the City of London, when she
carries oD. a trade there on her own account, she is
competent to bind herself by contracts in that trade ;
and if she is impleaded in the City, she pleads as a
feme sole, and if condemned, is committed to prison
tiU she make satisfaction, and the husband and his
goods are not chargeable ; Lavie and another vs.
Jane Cox, 3 Burr. 1776. The wife of an alien enemy
or of a transported convict is equally competent.
I see therefore, no anomaly in holding that a Maho-
metan married woman is left unaffected by English
law as to her capacity to contract as well as in res-
pect of her rights of property, and that she is, like
the London married woman subject to her own cus-
tom or law, and liable to be sued on her contracts.
The incapacity to contract which affects a married
woman at common law is founded on the fiction that
she and her husband are one person ; but I think
that fiction may well be confined to that kind of mar-
riage for which it was intended, the Christian and
indissoluble marriage. To extend it to the Maho-
metan marriage would be to apply it to something
different, and to establish but a weak foundation for
a law absurdly unjust and intolerably oppressive.

(35)

I am therefore of opinion that this plea is no answer
to the action.

This decision is not inconsistent with holding, as
I have held, that for the purpose of conveyance of
land, the deed of a Mahometan as well as of a Chris-
tian woman is not operative unless acknowledged
as required by the Indian Act of 1855, correspon-
ding to the fines and recoveries abolition Act ; for it
is a fundamental principle of the common law that
for all that relates to the forms and solemnities of
conveyances, and even of executory contracts rela-
ting to land, the lex loci regit actum ; Story Conf.
L. ss. 363, 435.* Nor, for similar reasons, is it in-
consistent with the decision by which it was esta-
blished that the English Statute of Distributions ap-
plies to all persons of whatever religion or race. Nor
does it seem inconsistent with the application of our
own rules in questions of guardianship. Biit even if
it were otherwise, it must be borne in mind that in
applying foreign law to particular cases, Courts
must be governed more by considerations of public
policy and convenience than of strict logical consis-
tency, and it is not therefore necessary to pursue
this part of the subject further. For the reasons
stated I am of opinion that the plea of coverture in
this action is no answer to it, and that there must
be judgment for the plaintiff.

* And See Cader Meydin v. Shatomah, post.

COURT OF JUDICATURE.

SINGAPORE.

In the Goods of Lao Leong An.

Administration granted to the first wife of a Chinese. The second
wife entitled to an equal share of the Intestate's property. The law
of China considered.

Singapore Daily Times, — 1867.

Judgment of the Hon'ble. Sir P. B. Maxwell, Knt.
Recorder.

In this matter, two petitions were filed praying

(36)

for letters of administration : one by the first, and
the other by the second wife of the intestate, a Chi-
nese inhabitant of this Settlement. I see no suflfi-
cient reason for refusing the application of the first
wife, and letters of administration will therefore be
granted to her. But as it was much urged, in resist-
ing the claim of the second wife, that the condition
of the latter was not that of a wife but merely of a
concubine, I think it right, with the view of saving
the parties the expense and suffering of a litigation,
to say that I had to consider this question some
years ago in Pinang, and that I was of opinion that
a second or inferior Chinese wife was to all intents
and purposes a lawful spouse and was entitled to
share with the first or superior wife in the property
of her deceased husband ; and it may be as weU if I
state now the grounds of my opinion. It may seem
difficult to apply the English statute of distributions
where poligamy is a recognised institution ; but this
difficulty was long ago solved in this Settlement* by
holding that where a Mahometan died intestate leav-
ing two or more wives, they were entitled to share
equally am.ong themselves the share which the statute
of distributions allots to the widow of a deceased per-
son. In the case of Mahometans, however, all the
wives are equal. Chinese polygamy differs in this
respect, and the first question for determination is
whether the second wife can be regarded as a lawful
spouse at all. The first wife unquestionably holds
higher rank in the household ; she addresses her hus-
band in terms of equality, while the inferior wives
address both him and her as their superiors. The
first wife if usually chosen by the husband's parents
of a family of equal station, and is espoused with as
much ceremony and splendour as the parties can
afford ; while the inferior wives are generally of his
own choice made without regard to family connec-
tion. But that they are wives not concubines seems

* Vide ante pages 13 and 35.

(37)

to me clear from tlie fact that certain forms of espous-
al are always performed, and that, besides, their
children inherit in default of issue of the principal
wife, and that throughout the Penal Code of Chi-
na they are treated as wives to all intents and pur-
poses as well at the first. Thus, to make a first-wife
marriage during the period of mourning for parents,
is punishable with 100 blows ; to make a second-wife
marriage in the same period is punishable with 80
blows. So, to marry while parents are in prison
for a capital ofEence is punishable whether it be a
first-wife or a second-wife marriage, but in the lat-
ter case by 20 blows less than in the former. Incest
is punishable in both cases, but with 20 blows less
in the case of the inferior marriage. Sects. 106 —
109. The law of divorce applies equally to inferior
wives. They may be divorced for the same causes as
the first wife and for none other ; and all infringe-
ments of this branch of the law are punished with a
similar reduction of two degrees, or twenty blows, in
the case of the inferior marriage. A man who sells
his first or superior wife is liable to 100 blows
and perpetual banishment ; he who sells his inferior
wife is liable to 80 blows and two years banishment.
Sect. 275. He who connives at, or compels his
wife's adultery, is punishable but with one degree of
greater severity when she is the first, than when
she is an inferior wife. If the first wife strikes her
husband, she is punished with 100 blows. If the
inferior wife strikes him or his first wife, she is lia-
ble to a punishment one degree more severe, viz :
110 blows. If the husband wounds either, he is
punishable, but with one degree of less severity when
she is an inferior, than when she is a first wife.

It may be true as was contended, that in China
the inferior wives have no share in the estate and
effects of their deceased husband. But this is im-
material for the purpose of the present question. If
it were otherwise, the first wife would not find it

(38)

easy, any more than the second, to establish her
right to letters of administration. The intestate
was domiciled in this Settlement, and his personal
estate must therefore be distributed according to the
law of the Settlement. He had, besides, real estate
here, and this, independently of his domicil, must
devolve according to the lex loci, that is, in the same
way as chattel property, according to the construc-
tion, long established, of the Act of 1837. The
rights of his wives therefore must be determined
by our law, and not by that of China.

And here comes the second question for deter-
mination, viz : as to the relative rights of the first
and inferior wives, inter se, in dividing the share
which our law allots to the widow. They are not
on a footing of equ,ality like Mahometan wives ; but
our law, to which polygamy is not only foreign but
repugnant, furnishes no rule for determining in what
proportion wives of higher and lower rank shall share
the widow's share, and I am unable to see any ade-
quate grounds for any other division than an equal
one.

COURT OF JUDICATURE.
singapore.

Before the Hon'ble Sir W. Hackett, Knt.,

Acting Chief Justice.

Veeramah v. Sawmy.

The Court has no jurisdiction on its Ecclesiastical side to entertain
suits for the restitution of conjugal rights of Hindoos. (August, 1867)

This was a libel instituted by a Hindoo wife
against her BQndoo husband on the Ecclesiastical
side of the Court, for restitution of conjugal rights.
The Defendant protested against the supposed juris-
diction to the effect that " this Court ought not to
" have or take further cognizance of this suit be-

(39)

" cause he saith. that this Court is incompetent to
" take cognizance of or proceed in the suit or to ad-
" minister towards and upon the plaintiff the Eccle-
" siastical Law as the same at the date of the Let-
" ters Patent establishing this Court may be used
" and exercised in the Diocese of London, in Great
" Britain."

Protest allowed.'*

*Et Vide Perozeboye v. Aderaer Cursetjee, 10 Moore P. C. C. 374.— Ed.

COURT OF JUDICATURE.

PINANG.

Before Sir P. B. Maxwell, Knt. Recorder.

Reg. V. Loon : in the Matter of Khu Lak Neoh.

The Court has jurisdiction on its civil j side to entertain suits for
the restitution of conjugal rights amongst non-Christians, even on
Habeas Corpus.

Pinang Gazette, 25th June, 1864.

In this case a woman was brought up by habeas
corpus, on the application of her husband, who
claimed that she should be ordered to return to him.

The woman resisted the application, alleging that
she had not been married to him. Mr. Aitken ap-
peared for her. Her mother denied the marriage,
but said that she had received 30 dollars from the
man as a consideration for cohabitation with her
daughter ; and that he had lived with her about six
weeks.

After hearing evidence on both sides, in addition
to the affidavits filed.

The Recorder held that the marriage had been
proved, and ordered that the wife should return to
her husband. In delivering judgment, he said that
he should take that opportunity, as it was the first

j But see Vadamalia Pillay v. Shetthay Awah, post ; also ex parte
Sandilands and Reg. v. Leggatt, (cited in next page) as to Habeas
Corpus. — Ed.

(40)

case of the kind in which, any real contest had oc-
curred, to explain upon what grounds the Court
acted in cases like the present, in order that there
might be no misapprehension on the subject. Where
the parties concerned in a question of restitution of
conjugal rights were Christians, the Court exercised
the Ecclesiastical jurisdiction with which it was in-
vested by the Charter ; and it was incumbent on the
parties to proceed on what was called the Ecclesi-
astical side of the Court. The Civil Court at home
refused to interfere in such cases, because whether
the husband had a right to compel his wife to return
to him, was a question belonging solely to the Eccle-
siastical Court, and one on which a Civil Court was
not competent to decide. Reg. v. Leggett, 18 Q. B.
781. S. C. Nom. Exp. Sandilands, 21 L. J. Q. B.
342 ; and this Court would of course be bound by
that authority in similar cases. But the Ecclesias-
tical jurisdiction of this Court in causes matrimonial
was confined to Christians, and was not applicable
to persons of other religions. This had been esta-
blished a few years ago by the Privy Council in Cur-
setjee v. Perozeboye, (10 Moo. P.C. 375.) reversing
the decision of the Supreme Court of Bombay. In
coming to this conclusion, however, the Privy Coun-
cil said that they " would much regret if there were
no Court and no law whereby a remedy could be
administered to the evils which must be incidental
to married life" among non-Christians; and they
added " such remedies, we conceive, the Supreme
Court on the civil side might administer, or at least
remedies as nearly approaching to them as circum-
stances would allow. Proceedings might be con-
ducted on the civil side with such adaptation to the
circumstances of the case as justice might require."
It was obvious therefore that it was the duty of the
Court, in its civil side, to act upon this suggestion,"*

* But see the more recent ease of Hyde v. Hyde and Woodmansee,
35 L. J. P. & D. (1866).— Ed.

(41)

and that the decision in Exp. Sandilands was no
authority where the parties were excluded from the
Ecclesiastical Court. The only question, then, was,
in what form these applications for the restitution
of conjugal rights among non-Christians, should be
brought before the Court. The present course had
been usually adopted here in conformity with the
practice which, he believed, prevailed at Madras, and
although he was not insensible to the defectiveness
of that course, he thought that a proceeding by
petition against the wife directly would be prefer-
able, and he did not think that any inconvenience or
injtistice would be done in the present case by follow-
ing the usual practice.*

*See Sir P. B. Maxwell's Straits Magistrates, 144. — Ed.

SUPREME COURT.

PINANG.

Before The Honorable Sir Wm. Hackett, Knt.

Jddge.

Vadamalia Pillay v. Shetthay Amah.

This Court has no Jurisdiction on its civil side to entertain suits
for restitution of conjugal rights amongst Hindoos.

February, 1869.

This was a suit instituted on the civil side of the
Court by a Hindoo husband against his Hindoo wife
for restitution of conjugal rights. The woman plead-
ed cruelty and violent assault. There was no evidence
as to the duties of husband and wife according to
Hindoo law.f

His Honour the Judge held that the Court had no
Jurisdiction in such cases, and referred to Hyde v.
Hyde and Woodmansee, 35 L. J. P. & M. 57.

I And see 1 and 2 Strange's Hindu law, as to its being a criminal
offence by that law. — Ed.

(42)
COURT OF JUDICATURE.

PINANG.

Sir Wm. Hackett, Knt., Judge.

Cader Mydin, Administrator of Hossansah.

V.

Shatomah.

A Mahomedan Married Woman must acknowledge by Deed assign-
ments of her realty situate in tlie Colony in conformity with Indian
Act XXXI of 1854. Husband must join in transfer or his absence
be accounted for. 13th July, 1868.

This was an action of Ejectment in whicli Judg-
ment had been given for the Plaintiff. The matter
was re-argaied last year and the .original Judgment
affirmed. The question was whether an assignment
by a Mahomedan married woman of her realty in
Pinang unacknowledged by Deed in conformity with
Act No. 31 of 1854, and without the concurrence of
her husband, was a valid conveyance.

D. Logan, Solicitor General, for the Plaintiff.

B. Rodyk for the Defendant.

Rodyk contended that as the Court had decided in
Hawah v. Daud-'-' that Mahomedan married women
were entitled to their own property to their sole
and separate use, it necessarily followed that the in-
cidents appertaining thereto must also be granted
to them. He cited

Taylor v. Meads, 34 L. J. Ch. 203.

Adams v. Gamble, 11 Irish Ch. Rep. 269.

Lechmere v. Brotheridge, 32 L. J. Ch. 577.

Haynes' Outlines of Equity. 2 Ed. 228.
Logan contended that the lex situs,-the law of the
land,-must govern all such questions as to realty, and
cited Story's Conflict of Laws.

His Honor the Judge held that every married wo-
man, whatever her creed or race, must conform to
the Act, and in conveying lands situate in this Co-
lony they must obey the law of the land : that the
natives wives are bound by the same law in such

* Vide ante page 26.

(43)

matters as other married women and that it would
be contrary to public policy to allow of any such de-
parture from the rvde as had been contended for."*
If the husband were absent the wife should apply to
the Court, who would see that justice was done.

* See story's Confl. Laws, § 431,463.

APPENDIX.

SUPREME COURT.

SINGAPORE.

Choa Cheow Neo v. Spottiswoode.

Will by a Chinese directing rents and profits of land to be expended
in " Sinchew " ceremonies, held void as being contrary to the law
against perpetuities, and not a Charity.* Superstitious uses con-
sidered. Straits Observer, 19 Feb. 1869.

Judgment of Sir P. B. Maxwell, Knt.,
Chief Justice.

In tliis case the testator, Choa Chong Long, a
person born and domiciled in Singapore, but of Chi-
nese descent, by his Will, in the English language,
after bequeathing legacies of 500 dollars apiece to
each of two sons and lonr daughters, and making
provision for another son, and after reciting that
he was erecting a building for charitable purposes,
and for the performance of religious ceremonies, ac-
cording to the custom of his ancestors, called Sin
Chew, to perpetuate the memories of his deputed
(departed ?) wives, as also of himself, after his de-
cease, devised certain houses and land in Singapore
and Malacca, and also his residuary estate, to trus-
tees, upon trust to apply the rents and profits, after
providing for repairs and insurance, " in the perform-
ance of such Sin Chew or Charity, in and to the
names (manes ?) of myself and my said wives here-
inbefore named and mentioned, to be performed
four times in each and every year at the least, and as
much oftener as the funds applicable thereto will
admit." The will contains also a direction to the
trustees to see that the " Charity " is faithfully car-
ried into effect according to the mode practised in
cases of Charities in the Indian Presidency towns ;
it requires that the lands devised shall be held and
continued in the testator's own name for ever, accord-
ing to the term of the original grants ; and it de-
clares that the testator's wish is to preserve the
funds so intended to be applied to such religions
and charitable purposes as aforesaid, from being

* This case overrules in re Chong Long's Estate, ante page 13. — Ekl.

(2)

embezzled or made away or interfered with by his
sons, daughters or relations, or otherwise diverted
from the purposes contemplated, not doubting that
the East India Company and those in authority un-
der them, woiild by due enforcement of its provisions,
encourage wealthy, industrious and honest Chinese
and other settlers in the Company's territories, to
follow his example and thereby ultimately advance
the wealth, prosperity, and permanency of its pos-
sessions in these parts.

The testator died about thirty years ago, leaving
the two sons and four daughters to whom he had gi-
ven the pecuniary legacies mentioned, and who, or
whose representatives, are the plaintiffs in this suit,
and leaving the other son already referred to, whom
he describes as an object of his especial affection,
but who is said by the plaintiffs to be illegitimate.
The personal representative of this son is a defen-
dant in this suit, but is oiit of the jurisdiction, and
has not appeared or pleaded. The other defendant
is the representative of the testator.

After the death of the testator, several applications
were made to this Court, on its Equity and Ecclesi-
astical sides of the Court, by some of the plaintiffs
or next of kin under whom some of them claim, the
general result of which seems to be that a receiver
was appointed, that it was ordered that the sum of
drs. 280 a year should be set apart out of the rents
for the performance of the ceremony mentioned, and
that the residue of the rents and profits should be
paid into the Treasury to the credit of the Sin Chew
fund. The fund thus accumulated amounts now to
upwards of drs. 33,500. These varioiis proceedings
were set up by the answer as a bar to this suit, but
I held at the hearing that they had not that opera-
tion, whether regard were had to their ex parte cha-
racter, or to the side of the Court in which some of
them had been taken. It is therefore incumbent on
me to determine the question raised by the suit.

(3)

The petition prays that it may be declared that the
devise for the Sin Chew is void, and that the testa-
tor died intestate as to the property devised for that
purpose, and consequently that it goes to the next
of kin.

Several Chinese men of learning have been exa-
mined for the purpose of ascertaining what are the
nature and object of this devise, and the substance
of their evidence is as follows : — The word Sin Chew
is composed of Sin, which means a spirit, soul or
ghost, and Chew, which means ruler ; and the com-
posite word means the spirit ruler, or spiritual head
of the house. When a man dies, his name, with
the dates of his birth and death, is engraved on a
tablet ; this is enclosed in an outer casing, on which
a new name, which is now for the first time given
to him, and the names of his children, are engraved.
This tablet is kept either in the house of the wor-
shipper, or in that which has been set apart for the
Sin Chew. It is sacred, and can be touched only
by the male descendants or nearest male relatives of
the deceased, who alone may look upon the name on
the enclosed tablet. It is the representation of the
deceased. At certain periods, viz., on the anniver-
sary of his death, and once in each of the four sea-
sons, his son or sons, or if he has none, his nearest
male relative, but never his daughters or other fe-
males, go to the place where the tablet is, and lay on
a table in front of it a qiiantity of food, such as pigs,
goats, ducks, fowl, fish, sweetmeats, fruit, tea and
arrack. They light joss-sticks, fire crackers, biirn
small squares of thin brown paper in the centre of
each of which is about a square inch of gold or sil-
ver tinsel, they bow their hands three times, kneel,
touch the ground with their foreheads, and call on
the Sin Chew by his new name to appear and par-
take of the food provided for him. The food remains
on the table for one or two or even three hours,
during which time the spirit feeds on its ethereal

(4)

savour ; and to ascertain whether it is satiated or sa-
tisfied, two pitis (Chinese coins) or two pieces of
bamboo are thrown on the table or on the ground in
front of it, and if they both turn up with the same
face, the offering is considered insufficient, and
more food is laid on the table. After the lapse of a
sufficient time to allow the spirit to partake of it, the
same test is again resorted to, and so, until the coins
or bamboos, by turning up different faces, shew that
the spirit has had enough. The food is then re-
moved, and eaten or otherwise disposed of by the re-
latives, but there is no distribution of it in charity or
among the poor. Indeed the Chinese have a repug-
nance to food which has been offered in this way,
except when they are members of the family. The
papers which are burnt supply the spirit with mo-
ney and clothing, the gold and silver tinsel turning
into precious metal. No prayers are offered to the
spirit ; the persons who makes the offering of food
asks for nothing whatever. The primary object of
the ceremony is to show respect and reverence to the
deceased, to preserve his memory in this world, and
to supply his wants in the other. Its performance
is agreeable to God, the supreme all-seeing, all-
knowing, and invisible being, who assists and pros-
pers those who are regular in this duty ; and its neg-
lect entails disgrace on him whose duty it is to per-
form it, and poverty and starvation on the neglected
spirit, which then leaves its abode (either the grave
or the house where the tablet rests) and wanders
about, an outcast, begging of the more fortunate spi-
rits and haunting and tormenting his negligent des-
cendant, and mankind generally. To avert the lat-
ter evil, the wealthier Chinese make, in the seventh
month, every year, a general public offering, or sa-
crifice, called Kee-too or Poh-toh for the benefit of
all poor spirits.

The question is whether this devise or bequest is
valid.

(5)

No difficulty arises in respect of the 9 Geo. 2 c. 36,
commonly called the Mortmain Act ; for that act
is not law here, Attorney General v. Stewart, 2 Mer.
163, and consequently lands may be devised for any
uses which are recognized by our law as charitable.
It was admitted, however, by Mr. Woods, who con-
tended for the validity of the devise, that it did not
fall under the legal destination of charitable ; and it
seems to me that it would have been difficidt to es-
tablish that it did. The term charity receives, in
questions of this kind, a peculiar but wide meaning ;
and although tlie Statute of Charitable Uses may
not be law here, I think that it may be laid down
that not only the various objects mentioned in its
preamble — such as gifts and devises for poor people,
for sick and maimed soldiers and sailors, for schools,
education and learning, for the repair of churches,
bridges, and other public works, and for other pur-
poses which it is unnecessary to enumerate — but al-
so, as in England, all objects having any analogy to
such uses, would be regarded as charitable. Lord
Cranworth said in the case of the University of Lon-
don V. Yarrow, 26 L. J. Ch. 430, that every object
beneficial to the community is a charity in the legal
sense of the term ; it is wide enough, at all events,
to comprise gifts for the support and diffusion among
men of every kind of religion, provided it be not im-
moral or cruel, or otherwise against public policy.
It was held, for instance, by Lord RomiUy, that a
legacy to print and propagate the writings of Johanna
Southcote was a good charity, as, however foolish
they might be deemed by most persons, they were
neither immoral nor irreligious, and were designed by
the testator to confer a benefit on the community,
Thornton v. Howe, 31. L. J. Ch. 767 ; and I do not
doubt that the validity of a bequest for the mainte-
nance or propagation of any Oriental creed, or for
building a temple or mosque, or for setting up or
adorning an idol, as in an Indian case mentioned by

(6)

Mr. Woods, would be determined in ttiis Court on the
same principle, and with the widest regard to the
religious opinions and feeling of the various Eastern
races established here. I make these remarks, not
because they are necessary to the decision of this
case, but to guard against my present judgment be-
ing misunderstood as questioning the validity of any
Eastern charity. In the case before me, however,
the devise is plainly not charitable ; it has not any
charitable object whatever, whether general or spe-
cial, in the sense of a benefit to any living being.
Its object is solely the benefit of the testator him-
self ; and although the descendants are supposed
incidently to derive from the performance of the Sin
Chew ceremony the advantage of pleasing God and
escaping the danger of being haunted, those advan-
tages are obviously not the object of the testator, nor
if they were, would they be of such a character as to
bring the devise within the designation of charitable,
as used in our Courts in reference to such subjects.
But if the devise is not a charity, on what ground
can it be supported ? It is clear that in Englond it
would be void. In West v. Shuttleworth, 2 M. and
K. 684, Lord Cottenham held that bequests to Ro-
man Catholic priests and chapels, in order that the
testatrix and her deceased husband might have the
benefit of their prayers and masses, were void, and
the same question has been since decided in the
same way in Heath v. Chapman, 23 L. J. Ch. 947,
and Bhmdell's Trusts in 31 L. J. Ch. 52. As Lord
Cottenham observed, there was nothing of charity
in their object ; they were not intended for the bene-
fit of the priests personally, or for the support of the
chapels for general purposes ; and they could not,
therefore, be supported as charitable bequests. It
is true, the legacies are in all those cases spoken of
as void because superstitious ; but as Sir W. Grant
observed in Cary v. Abbot, 7 Ves. 495, there is no
statute making superstitious uses or bequests void

(7)

generally. Tlie statute of 1 Ed. 6 c. 14 relates only
to superstitious uses of a particular description then
existing, and tlie 23 Hen. 8 c. 10, which was in-
tended to guard against the loss suffered by feudal
superiors through alienations in mortmain, rather
than to check the spread of superstition, relates only
to assurances of land to churches, chapels, and cor-
porate or quasi corporate bodies, for longer terms
than twenty years. Besides, when West v. Shuttle-
worth was decided, the dogmas and practices of the
Roman Catholic religion had ceased to be siipersti-
tious in the eye of the law. The 2 & 3 W. 3 c. 115,
had placed it on the same footing as other forms of
Christianity dissenting from the established one, in
respect of their schools, places of worship, and cha-
rities ; and a bequest for the repair of a Roman Ca-
tholic chapel, or the propogation of the Roman Ca-
tholic religion, was as valid as one for repairing a
Protestant Parish Church, or spreading the Protes-
tant faith, De Windt v. De Windt, 23 L. J. Ch. 776,
Bradshaw v. Tasker, 2 M. & K. 221. Lord Cotten-
ham, indeed, referring to some early authorities col-
lected in Duke on Charitable Uses, observed that the
Act of Ed. 6 had been considered as establishing that
legacies to priests to pray for the soul of the donor
were within the superstitious uses intended to be sup-
pressed by that statute ; but the effect of his decision
was that they did not fall within that Act ; for if they
had, the illegal legacies would have been forfeited
to the Crown, instead of being, as they were, held
distributable among the next of kin. But, however,
this may be, it seems to me that all such legacies,
whether they be desig-nated superstitious or other-
wise are void upon another ground, viz., that not
being for a public or quasi public benefit, they at-
tempt to create a perpetuity. On this ground, a le-
gacy to keep in repair the testator's tomb has been
repeatedly held void, Rickards v. Robson, 31 L. J.
Ch. 897, Lloyd v. Lloyd, 21 L. J. Ch. 598, Fowler v.

(8)

Fowler, 33 L. J. Cli. 674, Hoare v. Osborne, 35 L.
J. Ch. 345. On the same ground, a devise of and
to the trustees of a library established and kept up
for purchasing and preserving books for the subscri-
bers, was held void, Carne v. Long, 29 L. J. Ch. 503 ;
and Lord Campbell intimated in the case of Thom-
son V. Shakespeare, Id. 278, that a bequest of money
to erect and keep up a museum at or near Shakes-
peare's house, as a monument to the poet's memory
would be void, " as a perpetuity, not being a charity."
These words, indeed comprise the law on the sub-
ject. The law of England, as I understand it, does
not allow the owner of property, whether real or per-
sonal, to dispose of it for all future ages as he de-
sires, except in one case, and that is when his object
is of some general benefit to man, or charitable, in
the legal sense of the word. He may not settle ei-
ther money or land on his children or descendants
or other persons except for the limited period of
lives in being and twenty one years beyond ; still
less may he devote his property in perpetuity of his
own supposed private benefit, or for any other pur-
pose not charitable. On this ground alone, and not
because the law condemns as unsound the theologi-
cal dogma which such a legacy implies, (for the acts
of 23 Hen. 8 and 1. Ed. 6. are not in my opinion,
law in these Settlements,) I should consider a be-
quest for masses for departed souls, void, — and the
devise in this case void, unless the law of these Set-
tlements differs in this respect from the law of Eng-
land. It remains to consider this question.

In this Colony, so much of the law of England as
was in existence when it was imported here, and as
is of general (and not merely local) policy, and
adapted to the condition and wants of the inhabi-
tants, is the law of the land ; and further, that law
is subject, in its application to the various alien ra-
ces established here, to such modifications as are
necessary to prevent it from operating unjustly and

(9)

oppressively on them. Thus in questions of mar-
riage and divorce, it would be impossible to apply our
law to Mahometans, Hindoos, and Buddhists, with-
out the most absurd and intolerable consequences,
and it is therefore held inapplicable to them. Test-
ed by these principles, is the rule of English law
which prohibits perpetuities either of local policy,
unsuited to an infant Settlement, or inapplicable by
reasons of the harshness of its operation, to people
of Oriental races and creeds ? The rule is not found-
ed by any Statute, but is a rule of the common law,
and it seems to me to be one of a general and funda-
mental character, of great economical importance,
and as well fitted for a young and small community
as a great State, for both are interested in keeping
property, whether real or personal, as completely as
possible an object of commerce, and a productive
instrument of the community at large. I am, there-
fore, of opinion that in this Colony it is not lawful
to tie up property and take it out of circulation for
• all ages, for any purpose not of any real or imagi-
nary advantage to any portion of the community,
and if the rule against perpetuities be law here, it
might suffice to add that as the property in question
in this present case is chiefly if not wholly real, the
rule must apply to it invariably, whatever may be
the creed, race, or nationality of its owner, on the
ground mentioned in Story Conf. L. sect. 440, that
it is out of the question to subject property of that
nature to any but the local law, and thus introduce
in OUT own jurisprudence the innumerable diversi-
ties of foreign laws. But waiving this point, if it be
said that such a restriction on the power of impress-
ing on property the will of its present owner in per-
petuam, is unjust or oppressive to the natives of the
East, I should desire some proof or illustration of
such an effect. There is I believe, nothing in Chi-
nese law, or customs — certainly, I have had no evi-
dence of it — which requires the owner of property to

(10)

dispose of any part of it for the use of his own soul
after death. It has not even been sheA^m that such
a devise would be vahd in China, or indeed that the
power of testamentary disposition is known there at
all. No similar devise appears to have been ever
brought under the cognizance of the Court of these
Settlements, though one of them, Pinang,! has been
under British rule and inhabited by Chinese for up-
wards of eighty years ; and surely if a devise in fee
for the use of the testator's soul was dictated by
some imperative religious obligation, the question
now before me would have been raised and decided
long ago. Certainly it would require very strong
evidence to establish that it was regarded as a duty,
in any religion, to disregard the claims of natural
affection, and, as in this case, to dispose of the bulk
of one's property in providing for the supposed bene-
fit and comfort of his own soul, while he left his sons
and daughters almost wholly unprovided for. As
there is no such evidence, I am unable to see any
reason for holding that the rule against perpetuities
is less applicable to property in the hands of a Chi-
nese and a Buddhist than to property in the hands
of an Englishman and a Christian ijl and I think that
the former has no power to devise or bequeath pro-
perty to be devoted in Scecula sseculorum to any pur-
pose not charitable.

For these reasons, I think this devise void, and
that the property is distributable among the testa-
tor's next of kin living at his death.

I Sinchcw is a custom well known in Pinang and practised there
amongst the Chinese, but upon a very limited scale. — Ed.

:j: Sed qu., see Kistomchunder Seal v. Hooromooney Dassee, Bourke's
Calcutta Cases, 290-91. (citing 1 Boulnois' Reports) which seems to
decide that if the Hindoo Law contains no rule against perpetuities
then the English rule does not apply to Hindoo devises. Refer as to
the subject of endowment of idols to Goberdhum Bysack v. Shamchand
Bysack, and Sibchunder Doss v. Sibkissen Bannerjee, cited in Bourke's
Rep. 282.~Bd.

APPENDIX II.

COURT OF JUDICATURE.

JURISDICTION.

Notes of Cases.

I. Sultan of Johore.

1. Abdul Wahap bin Mabamat AUi v. Sultan
AUi. Malacca, 4th May, 1843. Sir Wm. Norris, Knt.
Recorder. Plea to the Jurisdiction overruled.

2. Veerapa Cbitty v. Sultan AUi. Singapore,
22nd May, 1854. Sir Wm. Jeffcott, Knt. Recorder.
Plea overruled.

3. Hadjee Hamid bin sembrum v. Tunku AUi.
Singapore, 1st May, 1855. Sir Wm. Jeffcott, Knt.
Recorder. Plea overruled.

II. TUMONGONG OF JOHORE.

Koh Hong Lip v. Dyang Ibrahim Maharajah.
Singapore, 20th Oct. 1858. Sir R. B. McCausland,
Knt. Recorder. Action for assault, false imprison-
ment, pecuniary mulct, &c. Plea overruled.

III. Rajah of Quedah.

Lawrence Nairne v. Rajah of Quedah and Wan
Ismail. Equity Suit. Pinang, 2nd March, 1861.
Sir P. B. Maxvi^ell, Knt. Recorder. Plea allowed.

APPENDIX III.

COURT OF JUDICATURE.

PINANG.
NOTES OF CASES, 1868.

1. Virapa Chitty v. J. J. Ventre. — Action on
Surety Bond made at Pinang as to Marine Insu-
rance on a French vessel, on a voyage from Pinang
to Singapore, &c. Loss of ship (Southward of the
Carrimon Islands) through ignorance of (Certifi-
cated) Master and drifting by tide or current. Held
no deviation. Phynn v. Royal Exch. Ass. Co. 7 T. R.
505, and Tait v. Levi, 14 East, 481 coramented on.
Semble, the Law of the Flag (French) should prevail.
Judgment for Defendant.

2. Mootoo Curpen Chitty v. Lee Toh. — The ordi-
nary printed " Chitty-Insurance " Bond (insurance
on goods, but ship and goods must both be totally
lost by foundering) held not void as a wager Policy.
Judgment for Plaintiff.

3. Abdul Kader v. Shatomah. — Mahomedan mar-
ried woman must acknowledge her assignments of her
Realty in the Straits, by deed jointly with her hus-
band, in accordance with Indian Act XXXI of 1854.
Judg-ment for Plaintiff in Ejectment.

4. W. E. Maxwell, Administrator, v. Chitty-
appah Chitty. — Mortgage of Hackney carriage, but no
agreement for sale. Sale by mortgagee upheld.
Judgment for defendant.

5. Shedumbruni Chitty v. Jones. — Assignment
of Salary by Deputy Sheriff held illegal.

6. Attorney General v. Kam Kong Gay, &c.
(Opium Farmers of Pinang). — Local Excise Act
XXIX of 1867 cancels, by implication, all Govern-
ment Excise Contracts between the parties under
Indian Act XXX of 1866. Judgment for the Crown.

7. Tan Kay v. Tan Lat. Action in Supreme Court.
Writ of Ne exeat regno entitled by mistake as issuing
out of the lately abolished Court of Judicature, held
void, and Bail Bond, &c., ordered to be cancelled.

(2)

8. In tlie Goods of Meh Allang. Administration
to adopted daughter refused and granted to the next
of kin.

The End.

nm: